DWI and the Intox EC/IR II

Let’s imagine you had a device – we’ll call it a breathalyzer – into which you could have people blow and claim to definitively establish what that person’s Blood Alcohol Concentration (BAC) was for court purposes.

Let’s imagine that over time this device became obsolete, and you developed a new, better device. When describing the new, better breathalyzer, you’d need to be careful because you wouldn’t want to say that the old device worked poorly. So you’d say that the new device is better in certain respects, but the old device was also fine. It’s a tricky line to walk, especially if you’re Intoximeters, Inc., the manufacturer of the Intoxilyzer 3000, 5000, and Intox EC/IR I and Intox EC/IR II.

The Intox EC/IR II is the device currently in service in North Carolina, and used by police agencies throughout the state to determine whether a person’s breath has a BAC (or Breath Alcohol Concentration) of .08 or above.

The problem with the Intox EC/IR II is that only police officers (and, sometimes, prosecutors) are trained on how the device works and certified in the proper use of the device.

Since only one side in a DWI dispute has an expert who has been certified as a Chemical Analyst by the Forensic Tests for Alcohol Branch of the NC DHHS, that side can present itself as having the more “credible” expert to a jury in a DWI trial.

It has been difficult for defense lawyers to even purchase an Intox EC/IR II device, and when they do, they are often not provided the actual device with the actual manual used in their jurisdictions.

I, in fact, inquired about purchasing the Intox EC/IR II device last year and was told flatly by an Intoximeters representative that since I was a defense lawyer, I was not someone they’d sell to even though I was willing to pay the reasonable cost for the device and for training on the device.

The problem with the Intox EC/IR II device (as with any device that only the prosecution has access to) is that it is effectively a black box. Cross examining a police officer about the device is made more difficult if the defense lawyer has not been afforded the opportunity to inspect and be trained on the device.

Other jurisdictions have held that it is in the interests of justice that defense lawyers be permitted to be trained on the device used by the prosecution in criminal cases:

The Special Master also recommended that the State provide Alcotest training for defense attorneys and their experts similar to that provided for operators and coordinators. The State, understandably, objected to this recommendation and urges us to reject it. Although we reject it in part, defense attorneys should not be left without any means of learning about the device or its operation. Rather, we deem it to be in the interests of justice that some form of training be made available to defense attorneys to enable them to better prepare to represent their clients. However, we agree that the State should not be burdened with this responsibility. We therefore direct that Draeger make Alcotest training, substantially similar to that provided to Alcotest operators and coordinators, available to licensed New Jersey attorneys and their designated experts. The training shall be offered at regular intervals and at locations within the State of New Jersey, at a reasonable cost to those who attend.

State v. Chun, 194 N.J. 54, 943 A.2d 114 (2008), cert. denied, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

That would be a good policy in North Carolina DWIs as well.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.